92 Decision Citation: BVA 92-22538
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 89-45 011 ) DATE
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THE ISSUE
Entitlement to service connection for a chronic acquired
psychiatric disorder, to include schizophrenia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
William R. Harryman, Jr., Associate Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Manila,
Philippines, Regional Office (hereinafter RO). The veteran
had honorable active service with the Philippine Scouts from
May 1946 to April 1949. Service connection for a
psychiatric disorder, to include schizophrenia, was denied
by the Board in January 1986. A rating decision in June
1989 found that no new and material evidence had been
submitted to reopen the veteran's claim. A notice of
disagreement was received from the veteran's mother, acting
as his next friend, in July 1989. The RO issued a statement
of the case in September 1989. The veteran's substantive
appeal was received that same month. The veteran has been
represented throughout his appeal by Disabled American
Veterans, which has submitted additional written argument on
his behalf. The appeal was initially received and docketed
at the Board in December 1989.
By a decision in April 1990, the Board denied the veteran's
claim, concluding that the additional evidence did not
present a new factual basis warranting service connection
for schizophrenia. However, by an order filed in November
1991, the United States Court of Veterans Appeals (the
Court) found that the newly submitted evidence was "new and
material," vacated the Board's decision, and remanded the
case with directions that the Board attempt to obtain
medical records requested by the veteran's sister.
Additionally, the Court directed the Board then to
readjudicate the case in light of any evidence so obtained
and in light of its finding that the veteran's claim had
been reopened. It should be noted that the Court
specifically retained jurisdiction over this case.
A decision was issued by the Board in February 1992,
remanding the case according to the Court's directions. The
veteran's appeal is now again before the Board for appellate
consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts, essentially, that he was first treated
for schizophrenia in January 1950, less than one year
following his separation from service, and that that
disorder should, then, be service connected.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all the
evidence and material of record in the veteran's claims
file, and for the reasons and bases hereinafter set forth,
it is the decision of the Board that the preponderance of
the evidence is against the veteran's claim of entitlement
to service connection for a chronic acquired psychiatric
disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Service connection for a psychiatric disorder, to
include schizophrenia, was denied by the Board in January
1986.
3. A chronic acquired psychiatric disorder was not present
during service, or the result of any incident therein, nor
was a psychosis manifest to a compensable degree within one
year thereafter.
CONCLUSIONS OF LAW
1. The January 1986 Board decision denying entitlement to
service connection for a psychiatric disorder is final,
based on the evidence then of record. 38 U.S.C.A. § 7104
(West 1991).
2. A chronic acquired psychiatric disorder, to include
schizophrenia, was not due to disease or injury incurred in
or aggravated by service, nor may a psychosis be presumed to
have been incurred therein. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that we have found that the
veteran's claim is "well-grounded" within the meaning of
38 U.S.C.A. § 5107(a). That is, we find that he has
presented a claim which is plausible. We are also satisfied
that all relevant facts have been properly developed. No
further assistance to the veteran is required to comply with
the duty to assist him mandated by 38 U.S.C.A. § 5107(a).
The service medical records show that the veteran was
hospitalized in September 1948 complaining of headache,
cough, sore throat, and substernal and abdominal pain. At
the time of initial examination, he refused to talk or
cooperate, but his medical history was apparently obtained
through an interpreter. He also reportedly appeared very
depressed. No specific abnormal clinical psychiatric
findings were noted and no psychiatric diagnosis was
assigned. The final diagnosis was listed as acute catarrhal
nasopharyngitis. The report of his separation examination
does not reflect any psychiatric complaints, and states that
no significant psychiatric abnormalities or personality
deviation was found.
The post-service medical records document both inpatient and
outpatient treatment of the veteran for schizophrenia since
1974 by several physicians. Those records provide little,
if any, information regarding the issue of service
connection for a psychiatric disorder. Additionally, one
private physician, C. Vicente, M.D., has indicated in
several statements that he had treated the veteran in
January 1950 for symptoms of withdrawal and suspiciousness,
and for being uncooperative and mute. He reportedly gave
the veteran electroshock therapy, with general improvement
in his condition until he developed aggressive and violent
behavior for which he was treated in 1974. None of the
statements by Dr. Vicente, however, are supported by any
contemporaneous medical records showing treatment of the
veteran for a psychosis beginning in January 1950, nor do
his statements contain any contemporaneous clinical findings
relative to manifestations of a psychosis. Dr. Vicente did
state that the veteran's family reported that, upon his
return from service, he was sleepless, unusually silent,
sometimes completely refusing to talk, and that he would on
occasion start running without apparent reason. Dr. Vicente
also expressed his opinion that the symptoms noted during
the veteran's inservice hospitalization actually represented
schizophrenia.
Attempts to obtain copies of the original records of alleged
treatment of the veteran since January 1950 pursuant to our
previous Remand decision have yielded records only
corroborating the prior evidence showing the veteran's
treatment for schizophrenia since 1974.
The evidentiary record also contains statements by the
veteran's mother attesting to his treatment for
schizophrenia since January 1950.
The Court found that an affidavit submitted by the veteran's
mother with his substantive appeal was "new" "in that
neither the mother nor anyone else had previously submitted
an affidavit to [the] effect" that "during the veteran's
first year after service the veteran's family had 'observed
him to be sleepless, unussually [sic] silent and at times
completely refusing to talk' and that during that time the
veteran 'would start running without apparent reason.'"
[citation redacted]. The
Court also found the veteran's mother's affidavit to be
"material" "because if found credible there is a reasonable
probability that it could change the outcome by
corroborating a diagnosis of schizophrenia." Id.
Interestingly, however, upon close inspection of that
affidavit and the other evidence in the claims folder, much
of the statement contained in the affidavit was repeated
verbatim from the report referred to above and made by
Dr. Vicente in July 1984. We do not feel that her
statements in that affidavit can be considered to be
credible, because they merely reiterate a statement
previously made by Dr. Vicente or summarize other medical
evidence. Our conclusion is also influenced by the
self-serving nature of the statements, made in order to
secure VA compensation benefits. Also, a person's memory
tends to fade and diminish over time, raising a serious
question as to her ability to recall with specificity
symptoms which supposedly were present many years earlier.
The mother's statement would be more credible if otherwise
supported by and consistent with contemporaneous
documentation.
The evidence clearly does not demonstrate that any chronic
acquired psychiatric disorder was present during service,
despite the retrospective opinion to the contrary by
Dr. Vicente many years after the fact. That opinion does
not comport with the criteria for a substantiated diagnosis
of schizophrenia as contained in the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders (3rd ed., 1987) (DSM-III). None of the symptoms
reported during service (refusing to talk and to cooperate,
and being depressed) are listed in DSM-III as diagnostic of
schizophrenia. Moreover, DSM-III requires that signs of the
disturbance be present for at least six months, including an
active phase of at least one week during which there were
psychotic symptoms of schizophrenia, before such a diagnosis
may be substantiated. There is no indication in the record
that the reported symptoms had such a duration; nor was a
diagnosis of schizophrenia or of any psychiatric disorder
assigned.
Dr. Vicente's opinion that the veteran's inservice symptoms
actually represented schizophrenia, then, has little
apparent credibility. Moreover, such an inherently
incredible statement is an indication to us that his later
diagnosis of schizophrenia during his alleged treatment of
the veteran in the 1950s may well have been in error as
well, especially in the absence of contemporaneous records
which might substantiate that diagnosis.
Therefore, we cannot find otherwise than that no chronic
acquired psychiatric disorder was present during service.
Accordingly, service connection for such a disorder on the
basis of direct service incurrence is not established.
38 U.S.C.A. §§ 1110, 1131.
Additionally, although Dr. Vicente has indicated that he had
treated the veteran for schizophrenia since January 1950,
less than one year after his separation from service, he
apparently had no contemporaneous records of any such
treatment. We find it difficult to believe that Dr. Vicente
could have recalled many years later and in the absence of
such records the precise date (January 3, 1950) on which he
began treating the veteran. People usually cannot recall so
precisely, especially after the passage of so many years.
Therefore, the physician's unsubstantiated and unsupported
statement, although well intended, has diminished probative
value on this basis as well. We do not accept his statement
as showing that the veteran manifested a psychosis to a
compensable degree within 1 year after separation from
service.
Therefore, we also conclude that service connection for a
psychosis is not established on a presumptive basis.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R.
§§ 3.307, 3.309.
Although we have considered the doctrine of affording the
veteran the benefit of any existing doubt, the evidence is
not so evenly balanced in this case to permit application of
the provisions of 38 U.S.C.A. § 5107(b).
ORDER
Service connection for a chronic acquired psychiatric
disorder, to include schizophrenia, is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
NANCY R. ROBIN B. KANNEE
ALBERT D. TUTERA
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.